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Part A: General Topics | 17. Cadastral System/Registration

A well-conceived and established cadastral system can maximize transparency, clarity and efficiency in the management of mineral rights, and minimize disputes among licence holders, thereby enhancing the security of mineral licence.

The cadastral system provides the framework of basic rules for the identification of mineral licence area boundaries on maps and in the field. At a minimum, a cadastral system requires that all mineral licence areas be polygonal in shape with all borders aligned north-south or east-west based on the most accurate official geographical/topographical maps available for the jurisdiction. At best, a cadastral system requires that all mineral licence areas be composed of contiguous square area units identified on official maps maintained and made available by the mining cadastre. The size of those units is a technical issue that depends on the quality of the jurisdiction’s maps and geodesic network.

A well-functioning cadastral system provides for the maintenance and updating of cadastral maps to show all areas that are either off limits to mineral activity, or subject to restrictions, or occupied by existing mineral rights, or subject to pending applications - in as close to real time as possible.

In best practice, the cadastral system for mineral licences is linked with the function of maintaining a current and accurate registry of mineral licences and transactions, as well as a registry of applications for mineral licences.

The cadastral system and registry may be maintained in hard copy or electronic versions available on a closed network or online.

In best practice, the cadastral system for mineral licences is linked with the function of maintaining a current and accurate registry of mineral licences and transactions, as well as a registry of applications for mineral licences.

The cadastral system and registry may be maintained in hard copy or electronic versions available on a closed network or online.

Technical details may be specified in regulations, provided that the basic principles of the cadastral system and registry are stated in the mining law.

The cadastral system for mineral rights is often separate and apart from the cadastral systems for surface land rights, forest rights, water rights, petroleum rights, etc., but may be integrated into a generalized cadastral system showing all such rights.

17. Example 1:

Article [_]

(1) The Ministry of Mines (Cadastre Minier) is a public office with juristic personality and financial autonomy. It shall fall under [the regulatory authority]. Its articles of association, organisational structure and mandate shall be determined by a Decree of the [President] of [Country]. To cover its operating costs, the Ministry of Mines shall be authorised to collect and manage fees for the filing of applications and annual surface area fees per square meter.

(2) The Ministry of Mines shall be responsible for registering:

a)applications for mining and/or quarrying rights to be granted;

b)the mining and/or quarrying rights accordingly granted as well as decisions to refuse applications;

c)the revocation, cancellation or withdrawal of mining rights;

d)the transfer and subleasing of mining rights;

e)mining financial guarantees.

(3) In addition, it shall be responsible for cadastral surveys for applications for mining and/or quarrying rights, extensions of mining or quarrying rights to other minerals, coordinating technical and environmental assessments for applications for mining or quarrying rights as well as issuing Prospecting rights.

(4) The Ministry of Mines shall certify the minimum financial requirements of those applying for mining, quarrying and prospecting rights.

(5) In addition, the Mining Cadastre shall:

(a) Keep a register of mining and quarrying titles.

(b) Regularly maintain its registers and mining rights maps in accordance with a specific national cadastral system which is open for public inspection.

(c) Record renewals of mining and/or quarrying rights in accordance with the provisions of the present [Code][Act][Law].

(d) Give the applicants concerned written reasons for the findings of the relevant mining appraisals and issue them with mining and quarrying rights according to the scope of authority of the relevant authority.

(e) Record in writing views with regard to the classification, declassification or reclassification of a prohibited area.

(f) Be the decision-making authority in all matters relating to the transfer and subleasing of mining and quarrying rights and thereafter registering the said decisions.

(g) Remove the registration of the Mining or Quarrying Area on the cadastral map.

(h) Have the powers of a notary public with regard to certifying the authenticity of legal instruments relating to mortgaging, subleasing, and transferring of mining and quarrying rights.

(6) The Mining Regulations shall lay down detailed conditions for registering the legal instruments provided for in the present [Code][Act][Law], for the coordination of, and the technical and environmental assessments relating to applications, for notifying interested parties of the findings from mining appraisals, and models for mining or quarrying titles.

Article [_] The shape of Mining and Quarrying Areas

(1) Mining or quarrying rights shall be granted for mineral substances within a specific Area.

(2) An Area shall be in the shape of a polygon made up of whole, adjoining areas, subject to the limitations imposed by the borders of the National Territory and those relating to reserved prohibited and protected areas as specified in the Mining Regulations.

(3) The National Territory has been divided into cadastral mining areas according to the system specified in the Mining Regulations for the appropriate coordinates. These divisions define uniform and indivisible areas, the sides of which are oriented north-south and east-west.

(4) An Area shall not include squares which do not form part of the internal area which is the subject of a mining or quarrying right.

Article [_] The location of Mining and Quarrying Areas

(1) The geographical location of an Area shall be identified by the coordinates for the centre of each of the squares which make up the Area.

(2) Areas shall be indicated on maps using a scale of 1/200,000, held by the Ministry of Mines.

(3) The Mining Regulations shall lay down the terms for the division of the national territory into cadastral mining areas, as well as the rules governing the identification of Mining and Quarrying Areas.

Annotation

Drawn from DRC’s mining law (2002), this example contains extensive and comprehensive provisions establishing a cadastral system and registry for mineral rights and applications.

Article 12 of the law establishes the Mining Cadastre as an institution, defines its functions, and provides a financing mechanism for its services.

The functions of the Mining Cadastre include the registration of: applications for mineral rights, issued mineral rights, withdrawals and cancellation of mineral rights, transfers and sub-leases of mineral rights, and security interests in mineral rights.

Article 12 also assigns to the Mining Cadastre the functions of performing the cadastral (or spatial) evaluation of applications regarding mineral licences and coordinating the technical and environmental evaluations by the responsible authorities.

The article lists in full all functions assigned to the Mining Cadastre, which include the conservation of all mining and quarrying licences and maintaining on a regular basis the registries and cadastral maps in accordance with a specific national cadastral system. Such registries and maps are available for public consultation.

Article 12 provides that the Mining Regulation will set the details for the maintenance of the registries, the coordination of processing of applications, etc.

Articles 28 and 29 of the same code specify the principle rules for the shape and location of mineral licence areas. They are based on the concept of a national grid system using mapping coordinates and a basic geographical square unit to be defined in the Mining Regulation and oriented North-South and East-West. All mining licence areas must be composed of available, contiguous square units as defined. They are identified and plotted on the cadastral map by the coordinates of the centre of each such square unit on maps of 1:200,000 accuracy. The Mining Regulation provides the technical details.

Other articles from the law specify the role of the Mining Cadastre in connection with the processing of applications for, and administrative or judicial decisions affecting, mineral rights.

17. Example 2:

Article 1. Establishment of the Mining Cadastre Office

(1) There shall be established within six (6) months of the coming into effect of this [Act][Code][Law] a Mining Cadastre Office with the responsibility for the administration of mining rights and the maintenance of the cadastral registers.

(2) The Mining Cadastre Office-

(a)shall be a body corporate with perpetual succession and a common seal;

(b)may sue and be sued in its corporate name; and

(c) may acquire, hold and dispose of property, whether movable or immovable.

(3) The Mining Cadastre Office shall be administered by a [Regulating Authority] who shall be assisted by such officers as shall be required for the efficient functioning of the cadastre system.

(4) In order to fulfil its functions under this [Act][Code][Law] the Mining Cadastre Office shall operate as the sole agency responsible for the administration of mining rights.

(5) The Mining Cadastre Office shall in addition to any other functions prescribed by
or under this [Act][Code][Law] perform the following-

(a)consider applications for mining rights and permits, issue, suspend and upon
the written approval of the [
Regulating Authority], revoke any mining right;

(b)receive and dispose of applications for the transfer, renewal, modification, relinquishment of mining rights or extension of areas;

(c)maintain a chronological record of all applications for mining rights in-

(i)a priority book which is to be specifically used to ascertain the priority
and registration of applications for exclusive rights on vacant areas;

(ii)a general registry book which is to be used for all other types of applications where registration of the priority is not required;

(d) undertake such other activities reasonably necessary for the purpose of carrying out its duties and responsibilities under the provisions of this [Act][Code][Law].

Article [_] Central and Zonal Offices of the Mining Cadastre Office

A Central Mining Cadastre Office with exclusive authority and jurisdiction over the whole of the country shall be established in [city] as the headquarters of the Mining Cadastre Office. The Mining Cadastre Office shall, according to administrative convenience, maintain an appropriate number of Zonal offices.

Article [_] Mining Cadastre Registers

(1) The Mining Cadastre Office shall open a series of files to be known as Mining Cadastre Office Registers for the purposes of this [Act][Code][Law], comprising of-

(a)a register of Reconnaissance Permits;

(b)a register of Exploration Licences;

(c)a register of Mining Leases;

(d)a register of Small-scale Mining Leases;

(e)a register of the Water Use Permits; and

(f) a register of Quarry Leases.

Article [_] Boundary

Every mining right, temporary right or mining lease shall be bounded by vertical planes from the surface boundary lines drawn downwards to an unlimited depth from surface.

Annotation

Drawn from Nigeria’s mining law (2007), this provision provides for the creation of the Mining Cadastre as an agency with sole responsibility for administration of mining rights. The provision specifies the functions of the cadastre and, in particular, the registries of mining rights that the agency is to maintain. The Act does not, however, establish principles for the shape, and alignment of mining right areas, providing only in section 145 that their boundaries will be planes extending downward into the earth to unlimited depth. Presumably, such issues may be clarified in regulations made by the Minister under section 21 to [give] full effect to the provisions of [the] Act”.